gno.law

People v. White

California Court of Appeal · D025862 · 1997-06-10 · Published · 55 Cal. App. 4th 914 · 55 Cal. App. 2d 914 · 64 Cal. Rptr. 2d 245 · 97 Daily Journal DAR 7357 · 97 Cal. Daily Op. Serv. 4439 · 1997 Cal. App. LEXIS 463

The PEOPLE, Plaintiff and Respondent, v. MOSES WHITE, JR., Defendant and Appellant

Area
criminal
Panel
Richard D. Huffman, Sr. (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:25Z · confidence high

The trial court resentenced the defendant to 12 years in prison and ordered direct restitution to be paid from prison wages pursuant to a 1994 statutory amendment. The Court of Appeal affirmed the judgment, holding that the issue was waived and that the procedural change did not violate ex post facto prohibitions.

Ruling reviewedStandardThe courtThe model
Order requiring direct restitution to be paid from prison wages pursuant to Penal Code section 2085.5
“The statutory change was only procedural and did not violate the proscriptions against ex post facto laws.”
unclearnot reachedagree with court
The appellate court held that the defendant waived the issue by failing to object to the manner of payment at the time of sentencing. Because the issue was waived, the court did not apply a specific standard of review to the trial court's ruling, though it addressed the merits in the alternative.
Constitutional validity of the 1994 amendment to Penal Code section 2085.5 allowing deduction of direct restitution from prison wages
“The statutory change permitting deductions to also be made for direct restitution in no way increases his liability for such payments nor makes the punishment for the offense more burdensome.”
de novonot reachedagree with court
The court applied de novo review to the constitutional question, determining that the amendment was procedural and did not increase the defendant's liability or make the punishment more burdensome, thus not violating ex post facto clauses.

Authorities

  • relied: Collins v. Youngblood (1990) 497 U.S. 37 — Defines ex post facto laws as those that punish previously innocent acts, make punishment more burdensome after commission, or deprive defenses available at the time of the act.
  • relied: Tapia v. Superior Court (1991) 53 Cal.3d 282 — The California Supreme Court has adopted the same definition of ex post facto under the California Constitution as the federal definition.
  • relied: People v. Gibson (1994) 27 Cal.App.4th 1466 — Issues not raised in the trial court are waived on appeal.
  • relied: People v. Kwolek (1995) 40 Cal.App.4th 1521 — Statutory changes that are procedural in nature do not violate ex post facto prohibitions.
  • relied: In re Jackson (1985) 39 Cal.3d 464 — Procedural changes to the administration of punishment do not constitute ex post facto violations.

The appellate opinion: sound — The opinion is sound because it correctly applies the established test for ex post facto laws from Collins v. Youngblood and distinguishes between substantive increases in punishment and procedural changes in collection methods. It also correctly applies the waiver doctrine based on the defendant's failure to object at sentencing.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

After revoking Moses White's probation on a Penal Code section 288.5 conviction, the trial court resentenced him by stipulation to 12 years, imposed a $100 restitution fine and $789.66 in direct victim restitution, and ordered both collected from prison wages under section 2085.5. On appeal White argued only that the 1994 amendments allowing direct restitution to be deducted from prison wages violated ex post facto principles; the Court of Appeal held the claim waived for lack of objection and, alternatively, meritless because the change was procedural, and affirmed.

Ruling reviewedStandardThe courtThe model
Order that $789.66 in direct victim restitution be collected from prison wages under section 2085.5 — reviewability (forfeiture for failure to object below)
“First, we agree with the Attorney General that the issue is not properly before us on appeal. White raised no objection to either the amount or the manner of payment of direct restitution. Accordingly, the issue is waived on appeal.”
unclearcorrectunsure
The court applied People v. Gibson's rule that failure to object to a restitution order forfeits the challenge. But White's claim was a constitutional ex post facto challenge to the legal authority for the collection order, which is the kind of pure legal error the Supreme Court in People v. Scott (1994) 9 Cal.4th 331 described as an 'unauthorized sentence' correctable without objection; the opinion does not address that exception. Because the court also reached the merits, the gap is not outcome-determinative, but the forfeiture holding is not fully supported.
Order that direct victim restitution be collected from prison wages under section 2085.5 as amended in 1994 — ex post facto challenge on the merits
“The statutory change permitting deductions to also be made for direct restitution in no way increases his liability for such payments nor makes the punishment for the offense more burdensome.”
de novocorrectagree with court
The court did not state a standard, but treated the ex post facto question as one of law, which is the correct approach. Under Collins v. Youngblood and Tapia, a law is ex post facto only if it criminalizes prior innocent conduct, increases the punishment, or removes a defense. White's liability for direct restitution and for prison-wage deductions (for the fine) already existed when he offended and was originally sentenced; the amendment merely changed the collection mechanism for an existing obligation. In re Jackson and People v. Kwolek support treating such changes as procedural. The conclusion follows from the cited authorities.

Authorities

  • relied: Collins v. Youngblood (1990) 497 U.S. 37 — Defines ex post facto laws as those that criminalize previously innocent conduct, make punishment more burdensome after commission, or deprive the accused of a defense available when the act was committed.
  • relied: Tapia v. Superior Court (1991) 53 Cal.3d 282 — The California Constitution's ex post facto clause is construed identically to the federal clause as defined in Collins v. Youngblood.
  • relied: People v. Gibson (1994) 27 Cal.App.4th 1466 — A defendant who fails to object to a restitution order or fine at sentencing waives the challenge on appeal.
  • relied: People v. Kwolek (1995) 40 Cal.App.4th 1521 — Applying section 2085.5's prison-wage deduction procedure to a defendant whose offense predated the statute is a procedural change that does not violate ex post facto principles.
  • relied: In re Jackson (1985) 39 Cal.3d 464 — Procedural changes that do not increase the punishment for an offense are not ex post facto laws.
  • missed: People v. Scott (1994) 9 Cal.4th 331 — Although discretionary sentencing choices are forfeited absent objection, a sentence unauthorized by law or a pure legal error may be raised for the first time on appeal; the court did not address whether an ex post facto challenge to the collection order falls within this exception before holding the claim waived.

The appellate opinion: sound with gaps — The merits analysis correctly applies the Collins/Tapia definition and the procedural-change line of cases (Jackson, Kwolek) to conclude that redirecting an existing restitution obligation through prison-wage deductions does not increase punishment. The waiver holding, however, rests on Gibson alone and does not confront People v. Scott's unauthorized-sentence exception, which arguably permits a constitutional ex post facto claim to be raised without objection; the alternative merits holding makes this gap harmless to the result.

How this analysis was made · dispute it

Opinion — Huffman

Opinion

HUFFMAN, J.

In September 1991, as part of a plea bargain, Moses White, Jr., pled guilty to continuous sexual abuse of a child in violation of Penal Code 1 section 288.5, subdivision (a). He was sentenced to 16 years in prison with the execution of the sentence stayed pending a 5-year grant of probation.

In July 1995 White’s probation was revoked and he was resentenced by stipulation to the middle term of 12 years. The court imposed a $100 *916 restitution fíne and ordered $789.66 in direct restitution to the victim. Both the fine and restitution ordered were to be paid from prison wages pursuant to section 2085.5.

White has appealed. His appeal does not challenge his plea, the probation revocation, the sentence imposed or the amounts of the fine and restitution order. Remarkably, this appeal challenges, on constitutional grounds, the portion of the sentence which requires that the $789.66 be paid out of prison wages. The collection procedure, White argues, violates the prohibition against ex post facto legislation. We will find no violation and affirm.

Discussion 2

At the time of the offense in this case White was subject to a restitution fine of up to $10,000. He was also subject to payment of direct restitution to the victim. (See Gov. Code, § 13967, as amended by Stats. 1986, ch. 1438, § 1, pp. 5140-5141, eff. Jan. 1, 1987.) At the time of the original sentencing, however, section 2085.5 only authorized the Director of Corrections to deduct restitution fines from prison wages.

In 1994, amendments to sections 1202.4 (Stats. 1994, ch. 1106, § 3) and 2085.5, subdivision (b) (Stats. 1994, ch. 634, § 1), permitted the director to also deduct direct restitution payments from prison wages.

White contends, for the first time on appeal, that the change in the law permitting deduction of restitution payments from his prison wages violates the ex post facto provisions of both the state and federal Constitutions. We disagree.

In Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715, 2719, 111 L.Ed.2d 30], the court said “‘any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.' [Citation.]”

The California Supreme Court has adopted the same definition of ex post facto under the California Constitution. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294 [279 Cal.Rptr. 592, 807 P.2d 434].)

White recognizes the law at the time of this offense provided for direct restitution payments to victims, as well as a potential restitution fine *917 of up to $10,000. Essentially, he argues the change in the law permitting the Director of Corrections to also deduct for direct restitution makes the punishment more burdensome. Or, viewed more cynically, such change makes it more likely he may actually have to pay some portion of the ordered restitution.

First, we agree with the Attorney General that the issue is not properly before us on appeal. White raised no objection to either the amount or the manner of payment of direct restitution. Accordingly, the issue is waived on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466 [33 Cal.Rptr.2d 217].)

Even if we consider the merits of the issue, there is clearly no constitutional violation. None of the burdens described in Collins v. Youngblood, supra, 497 U.S. 37 are present here. White’s liability for payment of restitution was already clear at the original sentencing. Likewise, he was at that time liable, upon going to prison, to have deductions for a restitution fine taken from his prison wages. The statutory change permitting deductions to also be made for direct restitution in no way increases his liability for such payments nor makes the punishment for the offense more burdensome. We certainly are not of the view that a statutory change that slightly increases the chance this defendant might pay some portion of the direct restitution which was properly ordered is an “unconstitutional burden.” The statutory change was only procedural and did not violate the proscriptions against ex post facto laws. (See People v. Kwolek (1995) 40 Cal.App.4th 1521 [48 Cal.Rptr.2d 325]; In re Jackson (1985) 39 Cal.3d 464, 471-472 [216 Cal.Rptr. 760, 703 P.2d 100].)

Disposition

The judgment is affirmed.

Kremer, P. J., and McDonald, J., concurred.

1

All statutory references are to the Penal Code unless otherwise specified.

2

Since this appeal does not raise any issue regarding the facts of the underlying offense we will omit the traditional statement of facts.

Cites, in this corpus

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